Hamilton (Phillip) (Executor in the estate of Arthur Roy Hutchinson, deceased testate) v Frederick Flemmings and Gertrude Flemmings
| Jurisdiction | Jamaica |
| Judge | PHILLIPS, JA |
| Judgment Date | 18 May 2010 |
| Neutral Citation | JM 2010 CA 76 |
| Judgment citation (vLex) | [2010] 5 JJC 1801 |
| Court | Court of Appeal (Jamaica) |
| Date | 18 May 2010 |
CIVIL PROCEDURE - Procedural appeal - Application to extend time to file defence - Real prospect of success
This is a procedural appeal from the decision of Master Lindo given on 22 April 2009, wherein she refused an application filed on behalf of the appellant on 17 March 2009, requesting that the time for the filing of his defence be extended and that the defence be filed and a copy served on the respondents within 14 days from the date of the order. Leave to appeal was granted.
The grounds of the application before the Master were that the appellant had been unable to file his defence within the period required due to illness and inability to give full instructions to his attorney-at-law, and also that the appellant had a real prospect of successfully defending the claim.
The notice and grounds of appeal were duly filed on 30 April 2009. The appellant challenged the exercise of the Master's discretion to refuse leave to file his defence, and relied on two grounds of appeal:
"(a) That the learned Master erred in law in holding that:
(i) The proposed Defence of hardship to a claim for a decree of specific performance was not available to the Appellant and/or is not known to law.
(ii) The appellant failed to satisfy the Court that the Defence had a real prospect of success.
(iii) The Appellant's delay in applying for the leave to file his Defence was inexcusable and therefore failed the test set out in Rule 13.1 of the Civil Procedure Rules 2002.
b)The Learned Master in exercising her discretion whether to grant or refuse leave erred in law by failing to abide by the overriding objective in that she did not consider the effect of the refusal to grant leave to file the Defence would have on the Appellant and not balancing it with the prejudice, if any, the grant of the Application would cause to the Respondents."
The proceedings.
This matter commenced by claim form and particulars of claim dated 30 July 2008. The cause of action and the remedy sought by the respondents were straightforward and succinct. The respondents claimed specific performance, damages in lieu of or in addition to specific performance, and all necessary enquiries and accounts, in respect of the appellant's breach of an agreement for sale made between the respondents and the appellant, for the sale of all that parcel of land which is contained in certificate of title registered at Volume 383 Folio 7 in the Register Book of Titles, which agreement the appellant had failed, neglected and/or refused to complete despite demand. Several documents relevant to the claim were annexed to the claim form, to wit, the agreement for sale, the certificate of title, copy grant of probate and other items of correspondence relating to the payment of the deposit of $900,000.00, and then later a further payment in the sum of $700,000.00 as requested, to "enable the estate to discharge its obligations to the Revenue and to secure the issue of the Form 8".
In the particulars of claim, the respondents referred to the agreement for sale dated 21 December 2006, mentioned the sale price of $4,350,000.00, that it was a condition of the agreement that completion should have taken place on or before the expiration of 90 days, and that they had made two payments toward the purchase price, the deposit and a further payment, although no further payments, subsequent to the deposit, were due under the agreement until completion.
The respondents averred that they were ready willing and able at all times to complete the transaction, however the appellant in breach of his contractual obligations had failed, neglected and or refused to complete the same. In the particulars of claim the respondents reiterated their claim for specific performance of the agreement and damages in lieu thereof or in addition thereto.
The acknowledgement of service of the claim form and the particulars of claim was filed on 17 September 2008, indicating service of the documents on 5 August 2008. The defence was not filed within the time required by the rules.
On 17 March 2009, the application for extension of time set out in paragraph 1 herein, the outcome of which is the genesis of this appeal, was filed with affidavit in support, sworn to by Mr Philip Hamilton, the executor of the estate of Mr Arthur Roy Hutchinson, deceased.
Mr Hamilton stated that he was a retired teacher, that he had received the claim form and particulars of claim in August 2008, and that early in September he had informed his attorneys about the development in a transaction they had been handling on behalf of the estate. He further deponed to the fact that he had had discussions with Ms. Elma Wilson who was residing in the house on the property, the subject of sale to the respondents. Ms Wilson was also the beneficiary under the will of Mr Hutchinson, and had previously intended to vacate the home and, to migrate to the United States of America. This plan however had fallen through, and she was then experiencing serious difficulties in obtaining alternate accommodation. In fact she had endeavoured to persuade the respondents to withdraw their interest in the premises as her health had deteriorated considerably and she was no longer able to climb steps. Unfortunately, this attempt did not bear fruit.
Mr Hamilton further stated that shortly thereafter he fell ill. He suffered a stroke, was hospitalized and was unable to speak to give his attorneys any instructions with regard to the claim which had been instituted against him.
By January 2009, he had been advised that the time for filing the defence had passed, but that he could apply for an extension of time to file the same. He indicated that he remained concerned about the welfare of Ms Wilson, and although informed that hardship as a defence was difficult to prove, nonetheless he was of the view that when all the circumstances were put before the court, the court would find that he had a real chance of success. A copy of the proposed defence was attached to the affidavit.
The proposed defence admitted that the parties had duly entered into the said agreement for sale, (in respect of premises registered at Volume 383 Folio 7 and located at 5 Lucas Road, Kingston) its conditions and the payments made thereunder, but added that the second further payment was also made in relation to a mortgage on the property, which the parties were unaware of at the time of execution of the agreement for sale. The appellant averred in paragraph 4 of the proposed defence that he was "ready, willing and able to account for all sums paid by the Claimant to the Appellant pursuant to and incidental to the Agreement for Sale". Additionally, he stated that he was unable to complete the transaction due to the 'exceptional hardship' being experienced by a third party, who was Ms Wilson the beneficiary of the estate. He indicated her original intention to migrate and reside with her daughter in the United States, but now pleaded that she had been denied a visa to enter that country. In paragraph 9 of the proposed defence he stated that Ms Wilson was "upwards of 65 years old and is cared for by persons who live near to her".
In the premises, the appellant prayed that the court would deny the respondents specific performance of the agreement for sale due to the hardship it would cause, which the appellant could not have foreseen, and asked that if the court saw it fit to award damages to the respondents, that those damages be in lieu of specific performance and not in addition to the same.
Master Lindo's Judgment.
Master Lindo heard this application on 1 April 2009. She reviewed the history of the matter through the courts, as well as the statements of case, which I have already set out herein. There was no affidavit in response to that of Mr Hamilton. However the Master referred to counsel's submissions on behalf of the respondents, wherein he stated that there was no credible explanation for the failure to file the defence within the time specified by the rules. In fact counsel said that there had been no request not to enter judgment, none to consent to file the defence out of time, there was no defence disclosed by the appellant and his actions had shown a disregard of the rules.
The Master appeared impressed with these submissions. She stated that even though the delay in filing the defence may have been due to the illness of the appellant, there was not sufficient evidence placed before the court in this regard, for instance there were no...
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John Ross Ricketts v David Williams and Another
...10 He relied on the principles laid down in Jamaican Court of Appeal case of PHILLIP HAMILTON EXECUTOR in the ESTATE OF ARTHUR ROY HUTCHINSON, DECEASED, TESTATE v FREDERICK FLEMMINGS & GERTRUDE FLEMMINGS SCCA No. 53/2009 delivered 18 th May 2010 where the court enunciated the principles to ......